A Durable Power of Attorney (DPOA) allows someone you choose (an “agent”) to make certain decisions for you or act on your behalf, even if you become incapacitated.
DPOAs are critical documents for estate planning. They ensure that someone you trust will take care of your personal and financial affairs or make healthcare decisions for you if you cannot manage them yourself. Life is unpredictable, and you never know when illness or injury may leave you helpless.
Durable Power of Attorney Forms – Use Case and State-Specific
There are two main types of durable power of attorney – general and medical. We provide samples of each below.
- District of Columbia
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
What is a Durable Power of Attorney (DPOA)?
A durable power of attorney is a POA form where the principal ( the person who is delegating the power ) authorizes the agent ( the person who receives the power ) to act in a wide range of business, legal, and health in case the principal is incapacitated. The document stays valid until the document is nullified or until the death of the principal.
What’s the difference between a Durable Power of Attorney and a Power of Attorney?
The difference between a Durable Power of Attorney and a Power of Attorney is that the former remains in effect even if you become incapacitated, while the latter does not.
- A durable power of attorney allows your agent to make decisions on your behalf even if you become incapacitated. For example, your agent can continue (or start) acting on your behalf if you’re diagnosed with dementia.
- A non-durable power of attorney is no longer adequate if you become mentally incapacitated. For instance, if you have dementia, your agent will lose their decision-making power.
When does a Durable Power of Attorney come into effect?
It’s up to you to decide if you want your legal document to take effect:
- As soon as it’s signed (following the state’s signing regulations), or
- Upon your incapacitation.
When does a Durable Power of Attorney end?
A Durable POA form will only expire if:
- You create a revoke a Power of Attorney
- You die
- It has an expiration date
- Your agent can’t fulfill their duties (and there’s no successor agent)
Keep in mind you can’t revoke it if you become incapacitated.
When should I use a Durable Power of Attorney?
You should use a DPOA if you’re:
- A senior citizen
- Scheduled to receive a surgery
- Living or traveling long-term overseas
- At the risk of / have been diagnosed with a disease
- Employed in a high-risk job
- A member of the armed forces deployed overseas
Without this document, you may have to pursue court-appointed guardianship of an elderly parent or loved one that becomes incapacitated.
What kind of power can I give to my agent in my DPOA?
You can grant your agent broad or limited power over your financial, real estate, business, or legal affairs with a general/financial power of attorney or over your healthcare decisions with Medical Power of Attorney.
For example, when creating a general/financial power of attorney, you could grant your agent power to manage:
- Banking activities
- Bill payments
- Contractual obligations
- Claims and litigations
- Real estate transactions
- Insurance claims
- Retirement accounts
Alternatively, you can limit or restrict your agent’s ability to manage specific affairs. For instance, you can give your agent the power to manage your banking activities but restrict them from touching your investments.
How do I restrict powers in my Durable Power of Attorney?
Most states provide a list of powers for you to choose from in their durable power of attorney form. You must demonstrate (e.g., by signing your initials) which powers you want to grant your agent. The exact method for indicating which powers you want to give your agent will vary by state.
Who should I choose as my DPOA agent?
The Durable POA agent you choose should be a close friend, family member, or spouse who is 18+ years of age and:
- Knowledgeable of your values and wishes
- Someone you trust to make decisions on your behalf
- Prepared to accept the responsibility of managing your affairs
Consider designating a professional such as a lawyer, financial advisor, or accountant as your agent if you have a complicated estate.
You appoint an agent and decide which powers to entrust them with is a critical step in creating your DPOA form. The person you select will have significant authority over your affairs and is legally required to act in your best interest.
You may also appoint multiple people as co-agents.
Steps can be taken to override the Power of Attorney if loved ones suspect that the agent isn’t acting in your best interests.
How does my agent accept their designation as my Power of Attorney?
Some states require the agent named in your POA to sign a statement confirming their acceptance of their role and responsibilities. Other states consider the agent taking action on your behalf according to the terms of the POA to serve as confirmation that they’ve accepted their appointment.
Check your state’s POA requirements to ensure you’ve taken all the necessary steps.
How does the agent sign documents on behalf of the principal?
For an agent to sign on your behalf, contact the third party or place where the DPOA will be used, and provide the IDs of you and your agent.
The agent can then sign on your behalf as follows:
by [Agent’s name]
Power of attorney
Your agent can use a power of attorney to conduct almost any legal matter that you can do (if granted the authority).
Does my Durable Power of Attorney need to be notarized?
Your Durable Power of Attorney may need to be notarized depending on your state. For your form to be legally binding, it must be signed following your state’s laws.
For example, in Florida, you need two witnesses and a notary public’s signature, while in Texas you only need to notarize the form.
To ensure you don’t end up with a powerless Power of Attorney, ensure you’ve met your state’s signing and other requirements.